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Agreement between the Government of Canada and the Government of Barbados on the Transfer of Offenders [2003] CATSer 14 (1 August 2003)

E104967

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF BARBADOS ON THE TRANSFER OF OFFENDERS

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF BARBADOS,

DESIRING to facilitate the reintegration into society of offenders under sentence,

CONSIDERING that this objective may be attained by enabling offenders under sentence, with their consent, to serve their sentence of deprivation of liberty in the country of which they are citizens,

HAVE AGREED as follows:

ARTICLE I

Scope of Application

1. Sentences imposed in Barbados on Canadian citizens may be served in Canada in penal institutions or under the supervision of Canadian authorities in accordance with the provisions of this Agreement.

2. Sentences imposed in Canada on Barbadian citizens may be served in Barbados in penal institutions or under the supervision of Barbadian authorities in accordance with the provisions of this Agreement.

ARTICLE II

Definitions

1. "SENTENCING STATE" means the State in which the sentence was imposed on the person who may be transferred;

2. "RECEIVING STATE" means the State to which the offender may be transferred in order to serve his sentence;

3. "OFFENDERS" means any person against whom a judgement has been pronounced by any court of competent jurisdiction in the territory of either Party and who is incarcerated therein, on conditional release or any other form of community supervision.

4. "CITIZEN" means:

a) in relation to Canada a citizen of Canada;

b) in relation to Barbados, a citizen of Barbados or a person who is entitled to citizenship by the laws of Barbados.

5. a) Words in the singular shall include words in the plural;

b) Words in the plural shall include the singular.

ARTICLE III

General Principles

1. The Parties undertake to afford each other the widest measure of cooperation in respect of the transfer of offenders in accordance with the provisions of this Agreement.

2. An offender in the territory of one Party may be transferred to the territory of the other Party, in accordance with the provisions of this Agreement, in order to serve the sentence imposed on him. To that end, he shall express in writing to the Sentencing State or to the Receiving State, his interest in being transferred under this Agreement.

3. Transfer may be requested by either the Sentencing State or the Receiving State.

ARTICLE IV

Conditions of Transfer

1. An offender may be transferred under this Agreement only on the following conditions:

A. The elements of the offence upon which the sentence has been imposed constitute a criminal offence according to the law of each of the two States, however this condition shall not be interpreted so as to require that the crime described in the laws of both states be identical in those matters which do not affect the said elements of the offence or the nature of the crime;

B. That the offender is a citizen of the Receiving State;

C. That the offender has not been convicted of an offence that is solely against the military laws of either Party;

D. That at least six months of the offender's sentence remain to be served at the time of the offender expresses his or her interest in transferring;

E. That the offender has not been sentenced to the death penalty, except that a person originally sentenced to death, but whose sentence has been commuted, is eligible to apply for a transfer;

F. That all appeal procedures shall have been completed and that the sentence be final with no extraordinary review proceedings pending at the time of invoking the provisions of this Agreement;

2. In exceptional cases, the Parties may agree to a transfer even if the time to be served by the offender is less than that specified in paragraph 1(D) of this Article.

ARTICLE V

Designation of Authorities

Each Party shall designate authorities to perform the functions provided for in this Agreement.

ARTICLE VI

Obligation to Inform

An offender to whom the present Agreement may apply shall be informed by the Sentencing State of the substance of the Agreement.

ARTICLE VII

Request and Replies

1. The Receiving State and the Sentencing State shall retain absolute discretion to refuse the transfer of the offender.

2. The request for transfer may be made by the Sentencing State or the Receiving State. In either case, the offender must have initiated or consented to the request, in writing. The request for transfer shall be made through the designated authorities.

3. When either Party does not approve, for whatever reason, the transfer of an offender, it shall communicate this decision to the other Party without delay.

4. If the requested State approves the transfer of the offender, it shall communicate, in writing, its approval to the requested Sate.

5. The transfer of the offender shall take place at a place agreed to and in the presence of the designated authorities of both parties.

6. An offender shall be informed, in writing, if any action and decision taken by either state on the request.

ARTICLE VIII

Consent and Verification

1. The Sentencing state shall ensure that the consent of the sentenced person, referred to at Article III 2. of this Agreement, is given voluntarily and with full knowledge of the legal consequences of the transfer.

2. To this end, the consent of the offender or, in the case of his incapability, of the person authorised to consent on behalf of the offender, shall be verified by a person duly designated to receive it.

3. The Sentencing State shall afford an opportunity to the Receiving State, if it so desires, to verify that the consent is given in accordance with the conditions set out in the preceding paragraphs.

ARTICLE IX

Transfer of Offender

1. The Receiving State shall be responsible for the custody and transport of the offender to the prison or place where he should complete his sentence from the time that the offender is received by the designated authority of the Receiving State, and in each case, as necessary, the Receiving State shall request the cooperation of third countries for transit of the offender through their territories. In special cases, by agreement between the respective authorities of both Parties, the Sentencing State shall assist in said request made by the Receiving State.

2. The Sentencing State shall furnish to the Receiving State a certified copy of the judgement convicting the offender, a statement of facts upon which the sentence was based, information on the nature, duration and date of commencement of the sentence and a statement indicating how much of the sentence has already been served, including any pre-trial detention and remission of sentence.

3. The Sentencing State shall provide, whenever appropriate, any medical or social reports on the offender information about his or her treatment in the Sentencing State any recommendations for further treatment.

4. The Receiving State may request any additional information regarding the offender to enable it to carry out the provisions of this Agreement.

ARTICLE X

Execution of Sentence

1. An offender transferred for execution of a sentence under this Agreement may not again be detained, tried or sentenced in the Receiving State for the same offence upon which the sentence to be executed is based.

2. Except as otherwise provided in this Agreement, the completion of a transferred person's sentence shall be carried out according to the laws and procedures of the Receiving State.

3. The Sentencing State shall retain exclusive jurisdiction regarding the sentences imposed and any procedures that provide for pardon, amnesty, revision, modification or cancellation of the sentences pronounced by its courts. The Receiving State, upon being informed of any decision in this regard shall take the appropriate action for the purpose of implementing the said decision.

4. The Receiving State shall be bound by the legal nature and duration of the sentence as determined by the Sentencing State. If however, the sentence is incompatible with the laws of the Receiving State, that State shall adapt the sentence to one which is prescribed by its own law for a similar offence. This sentence shall not aggravate, by its nature or duration, the sanctions imposed in the Sentencing State or exceed the prescribed maximum in the Receiving State.

5. Where the Receiving State has to adapt the sentence as provided by paragraph 4, it shall inform the Sentencing State prior to the transfer of the offender pursuant to this Agreement. If the adaptation is unacceptable to the Sentencing State it may refuse the transfer.

ARTICLE XI

Young Offenders

This Agreement may be extended to persons subject to supervision or other measures under the laws of one of the Parties relating to youthful offenders. The Parties shall, in accordance with their laws, agree on the type of treatment to be accorded to such individuals upon transfer. Consent for the transfer shall be obtained from the person legally authorised to consent on behalf of the young person.

ARTICLE XII

Information on Enforcement

The Receiving State shall furnish information to the Sentencing State concerning enforcement of the sentence in the following cases:

1. when it considers enforcement of the sentence will be completed. Information should include the date of completion of the sentence, six (6) months prior to completion, as well as any time by which the sentence was reduced on grounds such as good behaviour;

2. if the offender has escaped from custody or had died before the sentence has been completed; or

3. if the Sentencing State requests a written report on the conditions of enforcement.

ARTICLE XIII

Temporal Application

This Agreement shall be applicable to the enforcement of sentences imposed either before or after its entry into force.

ARTICLE XIV

Legislative Measures

In order to carry out the purposes of this Agreement, each Party shall take the necessary legislative measures and shall establish adequate administrative procedures so that the sentences imposed shall have legal effect within their respective territories.

ARTICLE XV

Final Dispositions

1. Each of the Parties shall notify the other upon completion of the procedures required to allow this Agreement to enter into force.

2. This Agreement shall enter into force on the first day of the second month following the date of receipt of the latter notification.

3. Either of the two Parties may terminate this Agreement at any time by communicating this intent by Diplomatic Note which shall be deemed to have been received by the other Party seven days after the date inscribed therein. Termination of this Agreement shall take effect one year after the date on which the Diplomatic Note is deemed to have been received.

4. This Agreement shall, however, continue to apply to the enforcement of sentences of persons who have been transferred in conformity with the provisions of this Agreement before the date on which such a termination takes effect.

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto, have signed this Agreement.

DONE at Bridgetown, on this 20^th day of May 2003, in the English and French languages, each version being equally authentic.

Sandelle Scrimshaw

FOR THE GOVERNMENT OF CANADA

Lionel Livingstone Nurse

FOR THE GOVERNMENT OF BARBADOS